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State Certification Board and Court-Contracted Mediation Services Heather Scheiwe Kulp

Heather Scheiwe Kulp, September 27th, 2018

In this guest post, Heather Scheiwe Kulp, the Alternative Dispute Resolution Coordinator for the New Hampshire Judicial Branch Office of Mediation & Arbitration reports on the connection between the state of New Hampshire’s family mediator certification board and the New Hampshire Circuit Court—Family Division ADR program. The Court contracts only with board-certified mediators to provide parties in divorce/parenting cases with mediation services. Earlier in her career, Heather was a Skadden Fellow at RSI.

In 1990, the New Hampshire legislature enacted legislation (RSA 328-C) creating the Family Mediator Certification Board (the “Board”) to certify family mediators and family mediator training programs. The statute gave the Board rule-making authority under the Administrative Procedure Act (RSA 541-A), thus housing family mediator certification functions in the executive branch. The purpose of the legislation was (and still is) to “protect and assist the public by providing standards for the practice of family mediation, training and continuing education for certified family mediators and certified family mediator training programs, and disciplinary procedures for violating ethical rules and requirements.” RSA 328-C:1. While most of RSA 328-C addresses the Board’s duties, the legislation does address some aspects of family mediation that are independent of the board: RSA 328-C:2(VI-V) defines “family mediator” and “family mediation”; and RSA 328-C:9 creates a mediation confidentiality for all family mediation, not just family mediation conducted by certified family mediators.

In 2015, the Board became part of the State’s Office of Professional Licensure and Certification—Technical Division. The duties of the 11-member Board include establishing eligibility criteria to be a certified family mediator, adopting ethical standards, and disciplining mediators after conducting complaint investigations. To fulfill its duties, the Board promulgates Administrative Rules and Practice Standards. These Rules and Standards inform mediator practice and establish what mediators must do to remain certified, including renewing their certification every three years. The Rules and Standards are also the criteria by which any complaints of misconduct are evaluated, investigated and determined.

In 2007, the New Hampshire legislature established (RSA 490-E) the Office of Mediation and Arbitration (the “Office”) within the Judicial Branch. The Office is responsible for developing and supporting alternative dispute resolution (“ADR”) programs in all courts and in pre-suit situations when ADR might be appropriate. Duties include contracting with, assigning, and overseeing court-contracted mediators, including family mediators.

Circuit Court Administrative Order 2014-11 sets out the criteria for family mediators who contract with the Court, including that a mediator “maintain [family mediator] certification at all times while contracted as a mediator with the family division of the Circuit Court.” Admin. Order 2014-11(2). Parties in a divorce or parenting case are welcome to choose their own private mediator, regardless of whether the mediator is certified. However, the Judicial Branch only contracts with (and therefore only assigns and only compensates for cases with indigent parties) family mediators who are certified pursuant to RSA 328-C. Fam. Div. Rule 2.13.

Currently, the Court contracts with approximately 40 certified family mediators to provide over 3000 court-assigned divorce or parenting mediation sessions per year. Most of these mediators also provide mediation services to private clients.

The Board and the Court have some interaction. The primary interaction is that the Court requires court-contracted mediators to be Board-certified. Thus, if a family mediator loses certification or chooses to let certification lapse, the Court terminates the mediator’s contract.  Also, the Board includes two Judicial Branch officers: one judge who regularly sits in the Family Division; and one full-time marital master. These officers share perspectives about issues before the Board that impact the Court. At times, the Board will reach out to the Office to learn more about how an issue may impact Court-based ADR. For instance, this summer, the Judicial Branch—including the Office—was invited to provide comments at the public hearing (or in writing) about the Board’s Administrative Rules changes.

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